Attorney
General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney
General Norman Mark Rapoport, all of Columbia; and Solicitor Robert Mills
Ariail, of Greenville, for Respondent.

CHIEF JUSTICE
TOAL: Because Timothy Edward
Stahlnecker (Appellant) challenges the constitutionality of a state law, this
Court reviews this matter pursuant to Rule 203(d)(1)(A), SCACR. On February
21, 2006 a Greenville County Grand Jury indicted Appellant on the charges of
first degree criminal sexual conduct (CSC) with a minor and lewd act upon a
child. Appellant went to trial and the jury returned guilty verdicts on both
charges. Appellant was sentenced to twenty years on the CSC charge and fifteen
years on the lewd act charge, the sentences to run concurrently. We affirm.

FACTS/PROCEDURAL HISTORY

Appellant lived in Greenville
County with his wife, their two-year-old daughter, his wife's seven-year-old daughter
(Victim), and his wife's five-year-old son from another previous marriage.
Around four o’clock in the afternoon on November 6, 2005, Victim was left home
alone with Appellant.

At trial, Victim testified
that she went to the upstairs bedroom and sat next to Appellant. Victim
recalled that Appellant removed her pants and touched her vagina with his
hand. Victim also testified that Appellant performed oral sex on Victim and
touched her vagina with his penis. Victim stated she tried to push Appellant
away during the incident. Appellant stopped because Victim's mother returned
home.

Victim's mother testified
that when she returned home, she noticed Victim had different clothes on and
told her to change her clothes. Victim's mother then went to check on Victim
and found her lying in a fetal position on the bed. She testified Victim
said she just wanted to go to bed, so she started to undress Victim in order to
put on her pajamas. She stated that as she did, she discovered the inside of
Victim’s panties were wet and a hair was stuck to Victim's "private
area." She then asked Victim if Appellant had been touching her. Victim's
mother testified that Victim responded by nodding her head yes and crying.
Defense counsel objected on grounds of hearsay. The trial judge overruled the
objection.

Victim's mother took Victim
to the hospital where Victim was interviewed by Ty Bracken, a sex crimes
investigator, in the presence of Victim's mother and grandmother. Prior to
trial, the State requested a ruling on the introduction of Victim's interview
with Bracken pursuant to S.C. Code Ann. § 17-23-175 (Supp. 2008). Bracken
testified in camera that she reported to the hospital and met with
Victim. Bracken stated she did not have recording equipment with her because
it was in the middle of the night and the hospital did not have recording
equipment in the room. Bracken testified she did not conduct a follow-up
interview because she received a very clear disclosure from Victim and did not
want Victim to have to perform a second interview. Bracken noted that getting
the statement from Victim was an emergency-type situation. Bracken took notes
of Victim's statements and specifically noted direct quotations from Victim.
At the conclusion of the hearing, defense counsel moved to exclude Victim's
statement to Bracken. Defense counsel argued section 17-23-175 violated the ex
post facto laws and Appellant's right to confrontation. The trial judge
denied the motion to suppress Victim's statement to Bracken.

At trial, Bracken testified
Victim told her that when her mother left that afternoon, Appellant called her
to come upstairs, and when she went into the bedroom Appellant was naked on the
bed. Bracken then stated Victim said Appellant kissed her vagina with his
mouth and touched under her panties with his penis. Lastly, Bracken testified
Victim told her this was not the first time this happened.

At trial, the State called
Victim's guardian ad litem (GAL) as a witness. Prior to the GAL's
testimony, defense counsel asked for a ruling from the court as to whether the
GAL could testify as to any incriminating statements made by Appellant to the
GAL during the GAL's interview of Appellant. Defense counsel argued the GAL
was a state actor and allowing the GAL to testify against Appellant violated
his Sixth Amendment right to counsel. The trial court allowed the GAL to
testify. The GAL testified Appellant admitted to her the police reports of the
incident were accurate and Victim initiated the incident.[1]

ISSUES

I.

Did
the trial court err in admitting the unrecorded out-of-court statement of
Victim to Bracken under section 17-23-175?

II.

Did
the trial court err in admitting Appellant's admission to the GAL?

III.

Did
the trial court err in admitting the testimony of Victim's mother concerning
Victim's statements to her mother regarding the sexual assault?

STANDARD OF REVIEW

"In criminal cases, the
appellate court sits to review
errors of law only. We are bound by the trial court’s factual findings unless
they are clearly erroneous." State
v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (citations
omitted). "This Court does not re-evaluate the facts based on its own
view of the preponderance of the evidence but simply determines whether the
trial judge's ruling is supported by any evidence." Id. at 6, 545
S.E.2d at 829. "The admission or exclusion of evidence is left to the
sound discretion of the trial judge, whose decision will not be reversed on
appeal absent an abuse of discretion." State v. Saltz, 346
S.C. 114, 121, 551 S.E.2d 240, 244 (2001).

ANALYSIS

I. Investigator
Bracken's Testimony

Appellant argues the trial
court erred in admitting the out-of-court statement of Victim to Bracken under
section 17-23-175 because it violated the ex post facto laws, violated
the rule against hearsay, and was prejudicial to Appellant. We find that
Appellant's hearsay and prejudice arguments are not preserved for review. We
also find that section 17-23-175 does not violate the ex post facto laws.

A. Issue
Preservation

An objection must be made on
a specific ground. State v. Nichols, 325 S.C. 111, 120, 481 S.E.2d 118,
123 (1997). For an issue to be properly preserved it has to be raised to and
ruled on by the trial court. State v. Wise, 359 S.C. 14, 21, 596
S.E.2d 475, 478 (2004). A party need not use the exact name of a legal
doctrine in order for the issue to be preserved, but it must be clear the
argument has been presented on that ground. State v. Russell, 345 S.C.
128, 132, 546 S.E.2d 202, 204 (Ct. App. 2001).

At trial, defense counsel
argued Victim's statement to Bracken was inadmissible because application of
section 17-23-175 violated the ex post facto laws and his right to
confrontation. However, defense counsel did not contend Victim's statement
constituted impermissible hearsay, that it was unduly prejudicial because it
was inconsistent with Victim's trial testimony, or that the State failed to
comply with section 17-23-175. Hence, the only issue preserved on appeal is
whether section 17-23-175 violated the ex post facto laws.[2]

B. S.C. Code Ann. § 17-23-175

"[T]he reason the Ex
Post Facto Clauses were included in the Constitution was to assure that
federal and state legislatures were restrained from enacting arbitrary or
vindictive legislation." Miller v. Florida, 482 U.S. 423, 429
(1987). An ex post facto law "imposes a punishment for an act
which was not punishable at the time it was committed; or imposes additional
punishment to that then prescribed; or changes the rules of evidence by which
less or different testimony is sufficient to convict than was then
required." Cummings v. Missouri, 71 U.S. 277, 278 (1866). "[I]n
order for a law to fall within the ex post facto prohibition, two
critical elements must be present: (1) the law must be retrospective so as to
apply to events occurring before its enactment, and (2) the law must disadvantage
the offender affected by it." State v. Huiett, 302 S.C. 169, 171,
394 S.E.2d 486, 487 (1990) (citation omitted).

The United States Supreme
Court has set forth four general categories of law that are violative of the
United States Constitution's ex post facto clause:

1st.
Every law that makes an action, done before the passing of the law, and which
was innocent when done, criminal; and punishes such action. 2nd. Every law
that aggravates a crime, or makes it greater than it was, when committed. 3rd.
Every law that changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed. 4th. Every law that alters the
legal rules of evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offence, in order to convict
the offender.

Calder v. Bull, 3 U.S. 386, 390 (1798).

"[I]n order for the ex
post facto clause to be applicable, the statute or the provision in
question must be criminal or penal in purpose and nature." Huiett,
302 S.C. at 172, 394 S.E.2d at 487. A change in the law does not violate the ex
post facto clause if it merely affects a mode of procedure and does not
alter substantial personal rights. Id. at 171, 394 S.E.2d at 487
(citation omitted). "Even though a procedural change
may have a detrimental impact on a defendant, a mere procedural change which
does not affect substantial rights is not ex post facto." Id. at 171-72, 394 S.E.2d at 487.

The United States Supreme
Court has held changes in laws that made previously inadmissible evidence
admissible did not violate the ex post facto clause. SeeThompson
v. Missouri, 171 U.S. 380 (1898) (holding a law admitting previously
inadmissible handwriting samples did not violate ex post facto clause); Hopt
v. Utah, 110 U.S. 574 (1884) (holding admission of convicted felon's
testimony, which was inadmissible at the time the crime was committed, did not
violate ex post facto clause). Furthermore, other jurisdictions that
have considered the admission of hearsay statements of child victims have
reached the same conclusion. SeeState v. Stevens, 757 S.W.2d
229, 232 (Mo. Ct. App. 1988) ("[A] change in a statute after the alleged
crime which allowed the hearsay statements of a child victim of sexual abuse to
be admitted against an accused at trial when previously such a statement was
inadmissible was not a prohibited ex post facto law because it simply
authorized the introduction of additional evidence of guilt."); accordCogburn v. State, 732 S.W.2d 807 (Ark. 1987); People v. Koon, 724
P.2d 1367 (Colo. Ct. App. 1986).

Section 17-23-175 allows an
out-of-court statement of a child under twelve to be admissible under certain
circumstances.[3]
In interpreting section 17-23-175, the court of appeals concluded the section
was not penal in nature but rather "deals with procedural, evidentiary
matters." State v. Bryant, 382 S.C. 505, 512, 675 S.E.2d 816,
820 (Ct. App. 2009). Furthermore, section 17-23-175 does not fall into
one of the four categories set forth in Calder. Seeid.
The amount or type of evidence required at the time of the commission of the
offense in order to convict the offender is not altered by section 17-23-175. Because
section 17-23-175 merely authorizes the introduction of new evidence and does
not alter substantial personal rights, it does not violate the ex post facto laws. Therefore, the trial court committed no error in allowing Bracken’s
testimony pursuant to section 17-23-175.

II. Appellant's Admission to the GAL

Appellant argues the trial
court erred in allowing the admission of Appellant’s statement to the GAL
because it violated his Sixth Amendment right to counsel. We disagree.

The Sixth Amendment right to
counsel "attaches only at or after the initiation of adversary judicial
proceedings against the defendant." U.S. v. Gouveia, 467 U.S. 180,
187 (1984). "[A] criminal defendant's initial appearance before a
judicial officer, where he learns the charge against him and his liberty is
subject to restriction, marks the start of adversary judicial proceedings that
trigger attachment of the Sixth Amendment right to counsel." Rothgery
v. Gillespie County, Tex., __ U.S. __, 128 S. Ct. 2578, 2592, 171 L.
Ed. 2d 366, 383 (2008). In Massiah v. U.S., 377 U.S. 201,
206 (1964) the United States Supreme Court held "that the petitioner
was denied the basic protections of that guarantee when there was used against
him at his trial evidence of his own incriminating words, which federal agents
had deliberately elicited from him after he had been indicted and in the
absence of his counsel." That language has given rise to a two-part test
to determine whether a violation of the Sixth Amendment has occurred: "[t]o find a Sixth Amendment violation, the statements in question must have been (1) deliberately elicited (2) by a government agent." U.S. v.
Li, 55 F.3d 325, 328 (7th Cir. 1995); seealsoCreel v. Johnson, 162 F.3d 385, 393 (5th Cir. 1998); Depree v. Thomas, 946 F.2d 784, 793 (11th Cir. 1991).

"There is, by necessity,
no bright-line rule for determining whether an individual is a
government agent for purposes of the sixth amendment right to counsel." Dupree,
946 F.2d at 793-94. Whether someone is a government agent for purposes
of Sixth Amendment jurisprudence depends on the facts and circumstances of each
case. Id. at 794 (citation omitted). However, "[a]t a minimum . .
. there must be some evidence that an agreement, express or implied, between
the individual and a government official existed at the time the elicitation
takes place." Id. (citation omitted). Regarding the “deliberate
elicitation” prong, the Supreme Court has explained that "the defendant
must demonstrate that the police and their informant took some action, beyond
merely listening, that was designed deliberately to elicit incriminating
remarks." Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986).

In the present case,
Appellant contends the GAL was a state actor because she was appointed by the
court. However, the record clearly indicates the GAL was not acting as a
government agent for purposes of the Sixth Amendment right to counsel. There
was no express or implied agreement between the GAL and a government official
involved in the prosecution of Appellant's case. The GAL was meeting with
Appellant to see that Victim received the social services she needed. In State
v. Sprouse, 325 S.C. 275, 284, 478 S.E.2d 871, 876 (Ct. App. 1996),
the court of appeals found that a case manager for the Department of Social Services
(DSS) was not acting as an agent of law enforcement and, therefore, the
requirements of Miranda did not apply. Similarly, the GAL in this case
was an employee of DSS appointed by the family court and in no way a government
agent for purposes of the Sixth Amendment right to counsel.

Additionally, the GAL did not
deliberately elicit Appellant's incriminating remarks. When the GAL met with
Appellant, she told him that she did not want to discuss the details of the
sexual assault. However, Appellant voluntarily made incriminating statements
to the GAL during the interview. In no way did the GAL take any action designed
to deliberately elicit incriminating statements. Hence, the statements made to
the GAL were not deliberately elicited and the GAL was not a government agent
for purposes of the Sixth Amendment. Therefore, the trial court did not err in
allowing Appellant's admission to the GAL.

Victim's Statement to her Mother

Appellant argues the trial
court erred in admitting the testimony of Victim's mother concerning the
statements of Victim to her about the sexual assault because they violated the
rule against hearsay and Rule 801(d)(1)(D), SCRE as the statements went beyond
the time and place of the assault. We disagree.

A. Issue
Preservation

At trial, defense counsel
objected to the introduction of Victim's statement as hearsay in general. The
trial judge overruled the objection. Defense counsel never argued that Victim's
statement went beyond the time and place of the assault as provided in Rule
801(d)(1)(D). Because this issue was not raised below, it is not preserved for
appellate review.

B. Hearsay

"'Hearsay' is a
statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted." Rule 801(c), SCRE. "Hearsay is not admissible except as
provided by these rules or by other rules prescribed by the Supreme Court of
this State or by statute." Rule 802, SCRE. An excited utterance is a
"statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition."
Rule 803(2), SCRE. "A statement that is admissible because it falls
within an exception in Rule 803, SCRE, such as the excited utterance exception,
may be used substantively, that is, to prove the truth of the matter asserted." State v. Sims, 348 S.C. 16, 20, 558 S.E.2d 518, 520-21 (2002)
(citation omitted).

Three elements must be met
for a statement to be an excited utterance: (1) the statement must relate to a
startling event or condition; (2) the statement must have been made while the
declarant was under the stress of excitement; and (3) the stress of excitement
must be caused by the startling event or condition. Id. at 21, 558
S.E.2d at 521. A court must consider the totality of the circumstances in
determining whether a statement falls within the excited utterance exception. State
v. McHoney, 344 S.C. 85, 94, 544 S.E.2d 30, 34 (2001). The passage of
time between the startling event and the statement is one factor to consider,
but it is not the dispositive factor. Sims, 348 S.C. at 21, 558 S.E.2d
at 521. "Other factors useful in determining whether a statement
qualifies as an excited utterance include the declarant's demeanor, the
declarant's age, and the severity of the startling event." Id. at
22, 558 S.E.2d at 521.

In the present case, Victim's
statement to her mother related to the startling event of being sexually
assaulted by Appellant immediately before her mother returned home. Victim was
lying in a fetal position when her mother came to check on her minutes after
arriving home. Victim was upset and crying when she told her mother about the
abuse; thus, Victim made the statement while under the stress of excitement.
Finally, this stress was obviously caused by the sexual assault. The
requirements of Rule 803(2), SCRE were satisfied in this case. Victim's
statement to her mother was an excited utterance and the trial judge did not
err in allowing Mother's testimony.[4]SeealsoState v. Ladner, 373 S.C. 103, 644 S.E.2d 684
(2007) (holding a trial judge did not abuse his discretion by admitting a
hearsay statement under the excited utterance exception when the statement was
made by a two-and-a-half year old girl to her caretakers after they discovered
blood coming from her vaginal area and the statement related to the startling
event of a sexual assault).

CONCLUSION

For the aforementioned
reasons, we affirm the decision of the trial court.

[1] The following evidence was also admitted at trial: (a) Deputy Dustin Woodall
testified Victim's mother told him Appellant sexually assaulted Victim in their
home; (b) Deputy Matthew Owens testified Appellant was read his warrant at the
detention center and Appellant admitted that he did what the warrant stated he
did; (c) the crotch of Victim’s panties tested positive for saliva; (d) a
signed statement of Appellant admitting he performed the acts on Victim was
admitted for impeachment evidence; and (e) a letter from Appellant to Victim's
mother apologizing and asking for forgiveness.

[2] While defense counsel argued below the application of section 17-23-175
violated his right to confrontation, Appellant failed to raise that issue on
appeal.

(F) Out-of-court statements made by
a child in response to questioning during an investigative interview that is
visually and auditorily recorded will always be given preference. If, however,
an electronically unrecorded statement is made to a professional in his
professional capacity by a child victim or witness regarding an act of sexual
assault or physical abuse, the court may consider the statement in a hearing
outside the presence of the jury to determine:

(1) the necessary visual and audio recording equipment
was unavailable;
(2) the circumstances surrounding the making of the
statement;
(3) the relationship
of the professional and the child; and
(4) if the statement possesses particularized
guarantees of trustworthiness.

After
considering these factors and additional factors the court deems important, the
court will make a determination as to whether the statement is admissible
pursuant to the provisions of this section.

[4] Even if the statement was not an excited utterance, the admission of this evidence
at trial was harmless considering the evidence noted in footnote 1. SeeState v. Sherard, 303 S.C. 172, 175, 399 S.E.2d 595, 596 (1991)
("Error in a criminal prosecution is harmless when it could not reasonably
have affected the result of the trial.").